Just Give Him the Dang Forms!

Mr. Fleming needed medical forms completed for his workers’ compensation case. He submitted the forms to the defendants but after “20 or more days” he had still not received the completed forms and his phone calls were not being returned. Consequently, a frustrated Mr. Fleming filed a civil warrant in Shelby County General Sessions Court alleging “dereliction of duty, negligence and conspiracy”, which had caused him “financial and stressful harm.” Seven months later, in January of 2012, the Defendants filed a motion to dismiss based on the Tennessee Medical Malpractice Act (TMMA). Defendants argued Mr. Fleming had failed to provide written notice of the claim and had failed to supply a good faith certificate. The case was dismissed by the General Sessions judge.

Undeterred, Mr. Fleming appealed to Shelby County Circuit Court. In July of 2012, the Defendants again filed a motion to dismiss with the same arguments made in the General Sessions matter. A month later, the Court held a hearing. At the beginning of the hearing, Mr. Fleming was finally given his completed forms which he had been pursuing for more than one year. Since he had finally received the paperwork, Mr. Fleming did not oppose the motion to dismiss. As such, the trial court entered an order granting the unopposed motion to dismiss and citing the failure to comply with the TMMA.

But that was not the end of the matter because the trial court assessed costs against Mr. Fleming. In response to the assessment of costs, Mr. Fleming filed a “Motion for Judicial Review” In his motion, Mr. Fleming outlined his efforts to obtain the records which included 2 court appearances, 15 phone calls to the Defendants and an appointment with Dr. Sanai. Since he ultimately obtained the relief he sought (his medical forms) at the hearing on the motion to dismiss, Mr. Fleming argued he was the prevailing party and costs should not have been assessed against him. The Defendants opposed Mr. Fleming’s motion citing the trial court’s order granting the motion to dismiss based on the failure to comply with the TMMA. After a hearing, the trial court denied Mr. Fleming’s Motion for Judicial Review.

On January 7, 2013, and before an order was entered on the Motion for Judicial Review, Mr. Fleming filed a “Motion to Alter or Amend Judgment” asking the court to reconsider the original ruling on the defendants’ motion to dismiss. However, Mr. Fleming’s Motion to Alter or Amend Judgment was filed roughly 5 months after the order of dismissal, so it was well outside the thirty days outlined in Tenn. R. Civ. P. 59.04. Therefore, on January 22, 2013, the trial court entered an order denying Mr. Fleming’s Motion for Judicial Review finding he was not the prevailing party and the trial court also refused to revisit its prior dismissal of Mr. Fleming’s complaint. In March of 2013, the Defendants filed their response to Mr. Fleming’s second post-judgment motion (Motion to Alter or Amend Judgment). Defendants argued the motion was untimely because it was not filed within thirty days of the August 31, 2012 judgment. On May 24, 2013, the trial court held another hearing in which Mr. Fleming’s motion was denied with one exception: the trial court changed the dismissal to one with prejudice instead of without prejudice.

On June 27, 2013, this mess that had started two years before, over the return of some completed medical forms, went to the Court of Appeals. Mr. Fleming’s Assignment of Error is a stream of consciousness paragraph that ranges from the trial court not drawing on life experiences to the importance of getting medical forms returned. Boiled down to its essence, Mr. Fleming’s was still upset at being required to pay court costs. In response, the Defendants argued the appeal was untimely; Mr. Fleming consented to the dismissal and the trial court had not abused its discretion in denying the post-judgment motions.

The Court of Appeals analyzed the timing of all the motions and concluded Mr. Fleming’s assignment of error was appealing the ruling on his second post-judgment motion, which was not timely filed with the trial court as it was filed more than thirty days after the entry of final judgment. In addition, the second post-judgment motion was really just a motion to reconsider the first post-judgment motion (Motion for Judicial Review). So under all the circumstances, the Court of Appeals concluded the trial court did not abuse its discretion in denying the Motion to Alter or Amend Judgment. The trial court was affirmed and, to add insult to injury, costs were taxed again to Mr. Fleming.

This case made me want to pull my hair out. The procedural history is a hot mess, but that is not the maddening part. No, what is jaw-dropping is that litigation over the return of the forms continued for more than 2 years and progressed through three courts. Instead of simply returning the forms, the defendants waited 7 months and then filed a motion to dismiss based on the TMMA no less. Notably, the Court of Appeals expressed its “surprise” that the defendants tried to couch Mr. Fleming’s case as a healthcare liability action subject to the notice and certificate of good faith requirements. The Court of Appeals was equally “surprised “the trial court agreed with the defendants argument in the motion to dismiss and cautioned: “[t]rial courts should be vigilant to guard against misuse of the TMMA as a vehicle for a defendant to obtain dismissal of a lawsuit that is not primarily a health care liability action.”

To be sure, pro se parties can be hard to deal with. Filing a lawsuit because you have been waiting for three weeks for your medical forms is a bit much. But this case is an excellent example of just how costly and time-consuming litigation can be when communications break down and/or the easy solution is given the middle finger. While Mr. Fleming arguably should have accepted defeat much earlier in the game, it is interesting to me that the defendants or their insurance carrier thought it was wiser to pay defense lawyers in a leading law firm for two years of litigation than to simply eat a couple of hundred bucks in court costs. But, of course, you can’t complain about the cost of so-called frivolous lawsuits if you do things the easy way and eliminate or substantially reduce those costs.

Remember too that there is no over-riding legitimate principle at stake here in the fight over court costs. This is a pro se litigant who was irritated that he could not get his medical information in timely fashion, not a fight over the integrity of a product or other interest worth spending lots of money to protect.

In short, we would all would do well to remember that just because you can fight about an issue does not mean you should.

By the way, if the defendants or their lawyers want to comment on this post and tell us why it made sense to fight this matter so aggressively or why it took this man seven months to get the data he requested I will make sure the comment is posted. Please be sure to include the total fees paid to the defense lawyers in the case so that each reader can weigh whether the juice was worth the squeeze.